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Cases of The Week and News
Evidence of False Allegations of Physical
Abuse Which Interfere with Parental Rights, Is So Inconsistent with the
Best Interests of the Child That it Raises, by Itself, a Strong
Probability That the Offending Party Is Unfit to Act as a Custodial
Parent
In Mohen v
Mohen, --- N.Y.S.2d ----, 2008 WL
2609358 (N.Y.A.D. 2 Dept.) the Appellate Division found that Supreme
Court's award of custody to the mother lacked a sound and substantial
basis and had to be set aside. Supreme Court gave insufficient attention
to facts and evidence that were of such significant collective magnitude
as to warrant a custody determination in favor of the father. The
Supreme Court found, with support in the record, that the mother, on at
least one occasion, had filed false charges of physical abuse against
the father. The mother made numerous false charges against the father.
There were four incidents of physical abuse accusations by the mother
against the father, in August 2004, December 2004, January 2005, and
December 2005. All of the Family Court petitions, when filed, apparently
were withdrawn or dismissed. All of the mother's reports to child
protective authorities were investigated and determined to be
"unfounded." Moreover, expert medical testimony in the record strongly
suggested that, regarding the January 2005 alleged incident, the mother
manufactured proof of physical injury to herself. She admitted to the
forensic examiner, and confirmed at trial, that the January 2005
incident of alleged physical abuse "might have been an accident." As a
result of the January 2005 accusations, a temporary order of protection
was issued against the father that prevented contact between the father
and the child for approximately one month. The mother accused the father
of having physically abused the child in December 2005 after a
visitation exchange, and made a report to Child Protective Services.
Records from Maimonides Hospital, where the child was examined the day
after the exchange, found the child to be physically normal. The
mother's manipulative conduct demonstrated a purposeful placement of her
self-interest above the interests of others. Evidence of false
allegations of physical abuse which interfere with parental rights, is
so inconsistent with the best interests of the child that it raises, by
itself, a strong probability that the offending party is unfit to act as
a custodial parent. By contrast, there was no evidence that any calls
the father made to the police against the mother were baseless. Supreme
Court failed to attribute adequate significance to the determination
that the mother had made at least one false claim, though the record
evidences more than one such claim, and improperly equated that evidence
with markedly less egregious conduct of the father. The trial court
erred in finding that the mother, rather than the father, would better
foster the child's relationship with the noncustodial parent. While the
parenting skills of both the mother and the father are subject to
criticism, there was sufficient evidence from which to conclude that the
father demonstrated an ability to foster post-divorce parent-child
relationships, having done so with regard to his two older children from
an earlier marriage. Moreover, a conclusion that the mother would more
successfully foster a child/noncustodial parent relationship was
insupportable, in light of her false allegations of physical abuse
against the father. The child's best interests were fostered by awarding
custody to the father. The father worked from a home office and would be
more readily available than the mother to meet the child's daily and
immediate needs. The judicial preference of keeping siblings together,
where possible, in order to encourage close familial relationships, is
firmly established. While there was clearly an age difference between
the parties' child and his two half-siblings, the numerous benefits the
child could derive from the development of a relationship with the older
siblings should not have been summarily disregarded. Supreme Court
providently exercised its discretion in granting the mother maintenance
of $3,500 per month for five years. However, it erred in failing to
include a provision that the award of maintenance shall terminate upon
the death of either party or the mother's remarriage, whichever shall
occur sooner.
A Credit Against Child Support for College
Expenses Is Not Mandatory but Depends upon the Facts and Circumstances
in the Particular Case, Taking into Account the Needs of the Custodial
Parent to Maintain a Household and Provide Certain Necessaries
In Pistilli v
Pistilli, --- N.Y.S.2d ----, 2008 WL
2713989 (N.Y.A.D. 4 Dept.) following the entry of a judgment that, inter
alia, granted plaintiff a divorce, plaintiff moved to modify the
judgment by "[d]istributing the actual and anticipated college education
costs associated with the parties' children," specifically the parties'
daughter, between the parties. Defendant cross-moved for an order
directing that he pay 60% of the college education expenses of the
parties' daughter and reducing his child support obligation accordingly.
Defendant appealed from an order requiring him to pay 80% of the
daughter's college expenses based on Supreme Court's determination that
defendant "shall contribute to college costs 'in accordance with his
percentage' " of the parties' combined parental income and denying his
cross motion seeking a reduction in his child support obligation.
Pursuant to an oral stipulation of the parties that was incorporated but
not merged into the judgment of divorce, the parties "agreed to
contribute to [their children's college expenses] as they are then
financially able." The Appellate Division held that the court erred in
failing to consider defendant's maintenance obligation in calculating
the percentage of defendant's contribution to the daughter's college
expenses. After subtracting from defendant's income the amount of
taxable maintenance paid to plaintiff as indicated on the parties'
respective 2005 tax returns, which were used by the court in determining
the parties' respective incomes, it concluded that defendant's
percentage of the combined parental income was 64% rather than 80%, and
thus defendant's pro rata share of the daughter's college expenses was
reduced from 80% to 64%. It rejected defendant’s contention that the
court erred in determining that he was entitled to a credit against his
child support obligation only in the amount of his pro rata share of the
daughter's college meal plan. It held that a credit against child
support for college expenses is not mandatory but depends upon the facts
and circumstances in the particular case, taking into account the needs
of the custodial parent to maintain a household and provide certain
necessaries. Because plaintiff had to maintain a household for the
daughter during the daughter's school breaks and weekend visits, it
could not be said that defendant was entitled to a credit for the
daughter's rooming expenses. Nevertheless, inasmuch as we it reduced
defendant's pro rata share of the daughter's college expenses from 80%
to 64%, defendant's child support credit based on the college meal plan
had to reflect that reduction and it modified the order accordingly.
Proper to Grant Cruelty Divorce in Long
Marriage Where Continuous Course of Misconduct. Error Not to Award
Custodial Parent Exclusive Occupancy of Home.
In Stacey v
Stacey, 52 A.D.3d 1219, 860 N.Y.S.2d
350 (4 Dept 2008) the Appellate Division affirmed a judgment that
granted defendant wife a divorce on the ground of cruel and inhuman
treatment. The Court held that defendant was required to establish that
the parties suffered from more than strained, unpleasant relations and
incompatibility and, in this marriage of long duration, a higher degree
of proof was required to establish cruel and inhuman treatment because
what could be viewed as substantial misconduct in a marriage of short
duration might be only 'transient discord' in a marriage of many years.
It noted however, the statement of the Court of Appeals that, "even in
[a long-term] marriage 'substantial misconduct' might consist of one
violent episode such as a severe beating" (Brady, 64 N.Y.2d at 345, 486
N.Y.S.2d 891, 476 N.E.2d 290). Defendant testified on direct examination
concerning an incident that occurred approximately five months before
the commencement of the action, during which plaintiff called defendant
vulgar names and repeatedly struck her on the side and back of her head.
The incident caused defendant to seek medical treatment, and she
obtained an order of protection against plaintiff. Defendant also
testified that plaintiff verbally abused her before she left for work
concerning her appearance and the clothes that she was wearing. On
cross-examination, defendant further testified that, throughout the
course of the marriage she was hit or slapped by plaintiff "every time
the dishes weren't done or the laundry wasn't done. According to
defendant, plaintiff's conduct was continuous and not an " 'isolated act
of mistreatment'. Thus, the court properly granted defendant a divorce
on the ground of cruel and inhuman treatment. The Appellate Division
agreed with plaintiff that the court erred in directing the immediate
sale of the marital residence and in failing to award him exclusive use
and occupancy of the marital residence until the parties' youngest child
attains the age of 18, and modified the judgment accordingly. Plaintiff
was awarded custody of the parties' children and thus, under the
circumstances of this case, he was entitled to such exclusive use and
occupancy. It stated: "Courts now express a preference for allowing a
custodial parent to remain in the marital residence until the youngest
child becomes 18 unless such parent can obtain comparable housing at a
lower cost or is financially incapable of maintaining the marital
residence, or either spouse is in immediate need of his or her share of
the sale proceeds". Here, there was no evidence in the record that
plaintiff, the custodial parent, could have obtained comparable, less
expensive housing in the same area or that he was financially incapable
of maintaining the residence, nor was there evidence that defendant was
in immediate need of her share of the proceeds from the sale of the
marital residence.
Fifth Circuit Holds Ne Exeat
Rights, Even When Coupled with "Rights of Access," Do Not Constitute
"Rights of Custody"
In
Abbott v Abbott, --- F.3d ----,
2008 WL 4210541 (5th Cir. 2008) the Fifth Circuit found persuasive
Croll's reasoning that the Hague Convention clearly distinguishes
between "rights of custody" and "rights of access" and that ordering the
return of a child in the absence of "rights of custody" in an effort to
serve the overarching purposes of the Hague Convention would be an
impermissible judicial amendment of the Convention. It held that ne
exeat rights, even when coupled with "rights of access," do not
constitute "rights of custody" within the meaning of the Hague
Convention.
Seventh Circuit Holds That by
Virtue of Doctrines of Patria Potestas and Ne Exeat, Venezuelan Father
Had "Rights of Custody". Does Not Reach Issue of Whether Doctrine of Ne
Exeat creates Custody Rights
In
Vale v. Avila,
2008 U.S. App. Lexis 17068 (7 Cir. 2008) the Venezuelan divorce decree
gave Avila physical custody of the children but gave both parents the
right (and duty) of patria potestas. The divorce decree also gave Vale
unlimited visitation rights, and the right of ne exeat, another civil
law doctrine, whereby his consent was required before the children could
leave the country. The Seventh Circuit held that by virtue of the
doctrine of patria potestas, Vale, the father, had rights relating to
the care of the person of the child, and, by virtue both of that
doctrine and by virtue of the doctrine of ne exeat, the right to
determine that the child's place of residence would remain Venezuela
rather than the United States. The Court pointed out that no more is
necessary to establish that Vale had "rights of custody," which Avila
infringed.
Second Circuit Reaffirms Croll Holding
That Ne Exeat Right Does Not Create Rights of Custody and Holds That District
Court May Enforce Rights of Access.
In
Duran v Beaumont,
--- F.3d ----, 2008 WL 2780656 (2nd Cir.(N.Y.) the Second Circuit pointed
out that the Hague Convention distinguishes between rights of custody and
rights of access. It defines rights of access as "the right to take a child
for a limited period of time to a place other than the child's habitual
residence." In interpreting the Hague Convention, the Court has held that
violating a ne exeat right ( the right to determine whether the child will
leave the country) is insufficient to qualify as a violation of custodial
rights. It reaffirmed its holding in Croll v Croll, 229 F.3d at 138-140,
that a ne exeat clause does not create rights of custody within the meaning
of the Hague Convention. It also pointed out that although remedies exist
in the event that a child is removed in breach of access rights, recourse
for such removal does not include an order of return to the child's place
of habitual residence. The court held that in such situations, district
courts may fashion a remedy ordering the custodial parent who has removed
the child to allow and financially provide for periodic visits by the non-custodial
parent (disagreeing with Cantor v Cohen, 442 F.3d 196 (4th Cir. 2006)
Obligation to Provide for Future
College Expenses Not Subject to Deviation Rules
In
Cimons v Cimons,
--- N.Y.S.2d ----, 2008 WL 2457243 (N.Y.A.D. 2 Dept.) the Second Department
in an opinion by Justice Angiolillo, held that, under the circumstances
presented here, the obligation to provide for the future college expenses
of the children was not part of the parties' basic child support obligation
and therefore was not subject to the CSSA requirement that any deviation
from statutorily-mandated child support obligations must be recited and
explained in a stipulation of settlement. Even though the parties violated
the CSSA by failing to recite and explain in their stipulation why they
deviated from CSSA standards in providing basic child support, and the basic
child support provisions were properly vacated as a consequence, the provision
concerning future college expenses survived the vacatur, and was enforceable.
The parties entered into a stipulation
of settlement, which was incorporated but not merged in a judgment of separation.
Subsequent to the entry of the judgment, the father moved to vacate the
child support and related provisions of the stipulation, alleging that the
stipulation failed to comply with the "opt-out/deviation" provisions of
the CSSA contained in Domestic Relations Law 240(1-b)(h). The Supreme Court
determined, in effect, that the parties' agreement deviated from the provisions
of the CSSA with regard to the calculation of "basic child support." Since
the parties failed to comply with the provisions of Domestic Relations Law
240(1-b)(h), those basic child support provisions were not enforceable,
and the Supreme Court vacated those provisions of the parties' stipulation
relating to their basic child support obligation for their three children,
ultimately scheduling a hearing for a calculation of basic child support
pursuant to the CSSA. However, Supreme Court denied the father's motion
to vacate the separate provisions of the stipulation that related to the
parties' agreement to provide for their children's future college expenses.
The Appellate Division affirmed. It
noted that a parent has an obligation to provide support for his or her
child's basic needs, an obligation which is addressed in Domestic Relations
Law s 240(1- b)(c)(1), (2). Unlike that basic obligation, support for a
child's college education is not mandatory. Absent a voluntary agreement,
a parent might be required to provide support for his or her child's attendance
at college, but the determination of that obligation is dependent upon the
exercise of the court's discretion in accordance with Domestic Relations
Law s 240(1- b)(c)(7).
Domestic Relations Law 240(1-b)(h)
requires that any agreement or stipulation voluntarily entered into between
the parties, and presented to the court for incorporation in an order or
judgment, must include provisions: (1) stating that the parties have been
advised of the provisions of the CSSA; (2) stating that the basic child
support provisions of the CSSA would presumptively result in the determination
of the correct amount of child support to be awarded; (3) stating what the
amount of basic child support would have been if calculated pursuant to
the CSSA, if the parties' stipulation or agreement deviates from the basic
child support obligation; and (4) setting forth the parties' reason or reasons
for deviating from the CSSA calculation, if they have chosen to deviate.
The requirements of Domestic Relations Law s 240(1- b)(h) may not be waived
by either party or by counsel.
The Appellate Division noted that in
contrast to the add-ons for child care expenses and future reasonable health
care expenses, which must be awarded and prorated in the same proportion
or percentage as each parent's income bears to the combined parental income,
the add-on for educational expenses is within the court's discretion, both
as to whether an award of such expenses is to be made in the first instance,
and the parties' share of any amount awarded. Domestic Relations Law 240(1-b)(c)(7).
Where the parties' stipulation or agreement
fails to comply with the requirements of Domestic Relations Law s 240(1-b)(h),
it is fundamental that the basic child support provisions of the agreement
are invalid and cannot be enforced. That portion of the agreement must be
set aside and the parties' basic child support obligation must be recalculated
through the application of the CSSA. Nonetheless, the invalidity of the
basic child support obligation, due to a deviation from the CSSA standards
without full compliance with Domestic Relations Law 240(1-b)(h), does not
necessarily require that the entire stipulation be vacated. That a portion
of an agreement may be invalid and unenforceable does not necessarily preclude
the enforcement of other portions of an agreement. (Ferro v. Bologna, 31
N.Y.2d 30).
The Court held that the determination
as to which additional aspects, if any, of the parties' stipulation must
be vacated along with the basic child support provision depends on the circumstances
of the particular case and the nature of the obligations addressed in the
other provisions of a stipulation. Some provisions may be so directly connected
or intertwined with the basic child support obligation that they necessarily
must be recalculated along with the basic support obligation. Unlike child
care expenses and unreimbursed health care expenses, education expenses
are not directly connected to the basic child support calculation. Initially,
education expenses differ from these other expenses in that, in the absence
of an agreement to pay education expenses, the determination as to whether
or not such expenses will be paid is within the court's discretion (see
Domestic Relations Law 240[1-b][c][7] ), while child care and unreimbursed
health expenses are mandatory. Also, education expenses differ in that such
expenses are not necessarily prorated in the same proportion or percentage
as each parent's income bears to the combined parental income.
The Court held that the entirety of
the stipulation should be considered in determining whether the parties'
agreement evinces that trade-offs were made which involved the basic child
support figure. In such a situation, expenses that are not directly connected
to the CSSA calculation, or even to child support, may be so closely intertwined
with the basic child support provision as to require vacatur.
This case fell within the ambit of
cases that have clearly stated that the tuition expense aspect of a college
education is distinct from basic child support. The parties' stipulation,
insofar as it pertained to their support for their children's attendance
at college, recited as follows: "The parties further acknowledge, each to
the other, that it is their anticipation that each of their children attends
college. And in this regard, the parties agree to contribute pro rata to
income to the minimum of a SUNY education. That is State of New York education
for a New York State resident for each child and shall contribute more than
that minimum, if possible, based upon their respective financial circumstances
at the time each child makes application to college. College expenses with
respect to the parties' obligation, to pay for same pro rata to income is
defined as including but not limited to tuition, room and board, mandatory
books, supplies and fees, pre-college testing classes and actual testing,
such as the SATs, scholastic aptitude tests and reasonable number of applications
to colleges for purposes of the child or children reviewing campuses for
purposes of making a final decision with respect to the selection of college."
The court held that to the extent that
the commitment to meet future college expenses addressed room and board,
the agreement did not deviate from the CSSA as it provided that the parties
will contribute to such expenses pro rata to income. The stipulation also
included extensive provisions as to how the parties are to deal with various
custodial funds that had been earmarked for college education expenses,
including a recital that such funds would be utilized in the first instance
before triggering the parties' obligation to contribute to college expenses
proportionally based on their income.
There was nothing in the record that
would support a finding that the father agreed to pay a share of college
expenses as a trade-off against some other expense. When the parties agreed
to equitable distribution and traded off certain assets, the stipulation
directly addressed those trade-offs. Thus, the wife received sole title
to the marital residence in exchange for waiving any claim to the husband's
pension, IRA, or deferred-compensation account. Similarly, the wife waived
any claim to certain stock in exchange for the husband's waiver of any claim
to a joint bank account. Additionally, the provisions of the parties' stipulation
regarding college expenses were distinguishable from those provisions of
the stipulation based upon the calculation of basic child support. In particular,
the stipulation provided: "Mr. Cimons shall pay child support for the benefit
of the children and to the age of 21 or 22, if in college." The father's
agreement to support his children and contribute to their college education
expenses beyond the age of 21 years inured primarily to the benefit of the
three children. As it is the intent of the CSSA to protect the children,
to the extent possible, from the economic consequences of their parents'
divorce or separation, it would seem particularly unjust to allow the father,
whose adjusted income, in 2005, after deduction of all mandatory deductions
including his maintenance obligation, was reported as $130,000, to wield
noncompliance with the CSSA as a sword to eviscerate his commitment to provide
his children with support for their college education.
Court of Appeals Holds That Commencement
Date of Prior Discontinued Divorce Action May Not Serve as Valuation Date
for Marital Property in Later Divorce Action.
In Mesholam v Mesholam,
6/27/2008 NYLJ 30, (col. 1) the Court of Appeals, in an Opinion by Judge
Pigott, held that the commencement of a prior, discontinued divorce action
may not serve as the valuation date for marital property for purposes of
equitable distribution in a later divorce action. Courts must use the commencement
date of the later, successful action as the earliest valuation date for
marital property. However, the circumstances surrounding the commencement
of the earlier action can and should be considered as a factor by the trial
court, among other relevant factors, as it attempts to calibrate the ultimate
equitable distribution of marital economic partnership
property acquired after the start of such an action by either spouse.
The parties were married in 1969. The wife commenced an action for divorce
in 1994. The husband answered, but did not counterclaim for divorce. Five
years later the Supreme Court granted the wife's motion to discontinue the
action. Almost immediately, the husband commenced this action for divorce.
After finding that the husband was entitled to a divorce Supreme Court held that the husband's pension must be valued as of the
commencement date of the present action, rather than the commencement date
of the wife's 1994 action, relying on Domestic Relations Law §236(B)(4)(b).
Supreme Court determined that the marital property, including the marital
portion of the pension, should be divided equally between the parties. The
Appellate Division held Supreme Court improvidently exercised its discretion
in valuing the pension as of the commencement date of the present action.
It concluded that the 'appropriate valuation date was the commencement date
of the 1994 action' because there was 'no evidence that the parties reconciled
and continued to receive the benefits of the marital relationship after
the prior action was commenced' (25 AD3d 670, 671 [2006]).
The Court of Appeals modified the order of the Appellate Division and remitted
the matter to Supreme Court for further proceedings. It pointed out that
Domestic Relations Law 236(B)(1)(c) defines marital property as all
property acquired 'during the marriage and before the
execution of a separation agreement or the commencement of a matrimonial
action.' Thus, in the absence of a separation agreement, the commencement
date of a matrimonial action demarcates 'the termination point for the further
accrual of marital property ' (citing Anglin v. Anglin, 80 NY2d 553, 556
[1992]). The Court held that the valuation date must be between 'the date
of commencement of the action and the date of trial ' (Domestic Relations
Law 236 [B][4][b]). In determining whether the commencement of a particular
'matrimonial action' terminates the accrual of marital property, it looked
to 'the overall legislative intent of the Domestic Relations Law and the
particular application of the equitable distribution regime. In Anglin,
the Court held that the commencement of a separation action does not cut
off the accrual of marital property because such an action does not, ipso
facto, terminate the marital economic partnership. Rather, the economic
partnership should be considered dissolved when a matrimonial
action is commenced which seeks divorce, or the dissolution, annulment or
declaration of the nullity of a marriage, i.e., an action in which equitable
distribution is available. It observed that this rule provides internal
consistency and compatibility and objective verification, as opposed to
uneven, ephemeral, personal interpretations as to when economic marital
partnerships end. For similar reasons, it concluded that the value of marital
property generally should not be determined by the commencement of an action
for divorce that does not ultimately culminate in divorce. Equitable distribution
is available 'in an action wherein all or part of the relief granted is
divorce. Where there is no divorce, there can be no equitable distribution.
Consequently, permitting the commencement date of the prior, unsuccessful
divorce action to govern the valuation date of marital property for the
purposes of a later, successful action in which equitable distribution is
available would be inconsistent with the statutory scheme. The Court found
that, as Supreme Court concluded, the pension benefits were marital property
to the extent that they were earned prior to the commencement of the present
divorce action. As a result, the marital portion of the pension could not
be valued at any time earlier than the commencement date.
Court of Appeals Holds Family
Court Lacked Subject Matter Jurisdiction to Entertain Wife's Application
for Increased Spousal Maintenance Despite "De Novo" Provision of Separation
Agreement
In Matter of Johna M.S. v Russell
E.S., --- N.Y.3d ----, 2008 WL 1860165 (N.Y.) Petitioner
wife and respondent husband executed a written separation agreement in 2003.
No divorce action was commenced. The agreement provided that the husband
would pay the wife $100 per week in spousal maintenance and $250 per week
in child support. The section of the agreement pertaining to maintenance
stated: "while this agreement will resolve these issues for the present
time, the Wife shall not be foreclosed from seeking additional maintenance
in negotiation with the Husband, or failing such negotiation, then filing
in a court of appropriate jurisdiction for a modification of the present
provisions concerning the payment of maintenance. Any application by the
Wife shall be treated as a 'de novo' application to the court, since it
is not possible to set future maintenance at this time because it is impossible
to forecast the Wife's needs or the Husband's income/earning capacity."
The wife commenced a Family Court Act article 4 proceeding seeking an upward
modification of maintenance and child support. The Support Magistrate dismissed
that portion of the wife's application seeking additional spousal maintenance
for lack of jurisdiction. The court noted that no proof was offered that
the wife was likely to become a public charge (see Family Court Act 463);
thus, the parties were bound by the terms of the separation agreement on
the issue of spousal maintenance. Family Court affirmed, as did the Appellate
Division. The Court of Appeals affirmed. It held that Family Court is a
court of limited jurisdiction that cannot exercise powers beyond those granted
to it by statute. It generally has no subject matter jurisdiction to reform,
set aside or modify the terms of a valid separation agreement. Nor can an
agreement of the parties confer on Family Court the power to modify the
terms of a separation agreement. A statutory exception to the rule prohibiting
the modification of separation agreements, not applicable here, exists where
a spouse "is likely to become in need of public assistance or care" (Family
Court Act 463). Family Court lacked subject matter jurisdiction to entertain
the wife's application for increased spousal maintenance. Although the parties'
separation agreement purported to permit Family Court to treat any application
by the wife as "de novo," such language cannot confer jurisdiction upon
Family Court. The wife's petition to Family Court for increased maintenance
expressly stated that it was "an application to the Court for an upward
modification of spousal support," premised on the insufficiency of current
maintenance due to a loss of certain Social Security benefits. In practical
terms, the wife was not presenting a new, or "de novo," application for
maintenance to Family Court. She was seeking increased maintenance from
that provided under the separation agreement. Thus, because the wife was
seeking a modification of a spousal maintenance award set forth in a separation
agreement, Family Court was without jurisdiction to entertain the petition
and grant the requested relief. Justice Smith dissented in an opinion
Second Department Holds Counsel Fees to Nonmonied Spouse Generally Warranted
Where a Significant Disparity in Parties Financial Circumstances and Should
Not Be Denied, or Deferred Absent Good Cause, Articulated in a Written Decision
In Prichep v Prichep,
--- N.Y.S.2d ----, 2008 WL 1987254 (N.Y.A.D. 2 Dept.) the Second Department,
in an opinion by Justice Prudenti, held that because of the importance of
such awards to the fundamental fairness of the proceedings, an award of
interim counsel fees to the nonmonied spouse will generally be warranted
where there is a significant disparity in the financial circumstances of
the parties and should not be denied, or deferred until after the trial,
which functions as a denial, without good cause, articulated by the court
in a written decision. It cited as examples of good cause, where the requested
fees are unsubstantiated or clearly disproportionate to the amount of legal
work required in the case. It based this conclusion on the fact that when
an action for a divorce is commenced, it is often the case that most of
the marital assets available for the payment of legal fees are possessed
or controlled by one of the spouses, usually the husband. In order to ensure
that the parties will have equal access to skilled legal representation,
the Domestic Relations Law authorizes awards of interim counsel fees to
the nonmonied spouse during the course of the litigation. The court pointed
out that when a party to a divorce action requests an interim award of counsel
fees, as opposed to a final award, a detailed inquiry is not warranted.
The husband commenced the divorce action in 1998. In June 2005, the wife
made a pretrial motion for interim counsel fees of $35,000. The wife's motion
papers noted that, although the court previously had awarded her interim
counsel fees of $20,000, she currently owed her attorneys $53,009. The wife
pointed out that the husband was a "highly successful vascular surgeon,"
earning $420,100 per year, while she worked part-time as an early intervention
therapist, earning $4,015 per year. In opposition to the wife's motion,
the husband argued that the wife had "over-litigated" the case, creating
and submitting voluminous and unnecessary papers, and thus generating excessive
counsel fees. Supreme Court denied the wife's motion "without prejudice
to renewal before the trial court to determine the financial circumstances
of the parties, the nature and complexity of the case, which includes the
valuation of a medical practice, the fees filed and legal services rendered
and the expertise of the attorneys." The wife thereafter moved to renew
her prior motion and for an additional award of interim counsel fees of
$40,000. Her attorney submitted an affidavit asserting that the wife now
owed his firm $159,000 in legal fees, as well as invoices and attorney time
records documenting billings in that amount. In the alternative, the motion
sought leave to withdraw as her counsel. Supreme Court denied the motion
for fees but granted the law firm's request to the extent of relieving it
as counsel for the wife. An award of interim counsel fees ensures that the
nonmonied spouse will be able to litigate the action, and do so on equal
footing with the monied spouse. Such an award "is appropriate 'to prevent
the more affluent spouse from wearing down or financially punishing the
opposition by recalcitrance, or by prolonging the litigation' "(citing Gober
v. Gober, 282 A.D.2d 392, 393, quoting O'Shea v. O'Shea, 93 N.Y.2d at 193;
see Charpie v. Charpie, 271 A.D.2d 169). If the playing field were not leveled
by an award of interim counsel fees, "a wealthy husband could obtain the
services of highly paid (and presumably seasoned and superior matrimonial
counsel, while the indigent wife, essentially, would be relegated to counsel
willing to take her case on a poverty basis".
Third Department Holds That Absent Stipulation No Pendente Lite Counsel
Fee Award Without A Hearing
In Bush v Bush, 46 A.D.3d
1140, 848 N.Y.S.2d 721 (3d Dept, 2007) Defendant cross-moved for among other
things, interim counsel fees in the amount of $85,172.81. Supreme Court
awarded defendant interim counsel fees of $25,000. The Appellate Division
reversed. It held that to justify an award of counsel fees, a sufficient
evidentiary basis must exist for the court to evaluate the respective financial
circumstances of the parties and value of the services rendered' Moreover,
Supreme Court cannot award counsel fees based solely upon written submissions,
unless so stipulated to by the parties. The proof submitted concerning the
financial circumstances of the parties was limited to written submissions
by respective counsel. As the record did not contain evidence of a stipulation
agreeing thereto, the proof of the financial circumstances of the parties
was inadequate for Supreme Court to properly assess the award of counsel
fees. The Appellate Division reversed and remitted to Supreme Court for
an evidentiary hearing (citing its 2003 decision in Yarinsky v.Yarinsky,
2 A.D.3d 1108 [3 Dept 2003] ).
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New and Recent International Child Abduction Cases
Abbott v Abbott, --- F.3d ----, 2008 WL
4210541 (5th Cir. 2008) [Chile] [Rights of Custody]
Barzilay v Barzilay,
536 F.3d 844 (8th Cir. 2008) [Israel] [Rule Against
Abstention]
Vale v.
Avila,
2008 U.S. App. Lexis 17068 (7 Cir. 2008)
[Venezuela] [Patria Posestas and Ne Exeat Right Creates Right of
Custody] NEW!!
Duran
v Beaumont, --- F.3d ----, 2008 WL 2780656 (2nd Cir.(N.Y.) [Chile] [Ne
Exeat Not Custody Right] [Rights of Access May Be Enforced] NEW!!
Viteri v Pflucker, 550 F.Supp.2d 829 (ND Illinois 2008) [Peru] [Availability
of Hague As a Remedy] NEW!!
Rules of the Chief Judge Adopted
to Define the Role of the Law Guardian.
The rule defines 'Attorney for the child' as
a law guardian appointed by the family court pursuant to section 249 of
the Family Court Act, or by the supreme court or a surrogate's court in
a proceeding over which the family court might have exercised jurisdiction
had such action or proceeding been commenced in family court or referred
thereto. [7.2 (a)] The attorney for the child is subject to the ethical
requirements applicable to all lawyers, including but not limited to constraints
on: ex parte communication; disclosure of client confidences and attorney
work product; conflicts of interest; and becoming a witness in the litigation.
[7.2 (b)] In juvenile delinquency and person in need of supervision proceedings,
where the child is the respondent, the attorney for the child must zealously
defend the child.[ 7.2 (c)] In other types of proceedings, where the child
is the subject, the attorney for the child must zealously advocate the child's
position. In ascertaining the child's position, the attorney for the child
must consult with and advise the child to the extent of and in a manner
consistent with the child's capacities, and have a thorough knowledge of
the child's circumstances. If the child is capable of knowing, voluntary
and considered judgment, the attorney for the child should be directed by
the wishes of the child, even if the attorney for the child believes that
what the child wants is not in the child's best interests. The attorney
should explain fully the options available to the child, and may recommend
to the child a course of action that in the attorney's view would best promote
the child's interests. When the attorney for the child is convinced either
that the child lacks the capacity for knowing, voluntary and considered
judgment, or that following the child's wishes is likely to result in a
substantial risk of imminent, serious harm to the child, the attorney for
the child would be justified in advocating a position that is contrary to
the child's wishes. In these circumstances, the attorney for the child must
inform the court of the child's articulated wishes if the child wants the
attorney to do so, notwithstanding the attorney's position. [7.2 (d)]
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